Rowe v. State

Cite as 2014 Ark. App. 446
ARKANSAS COURT OF APPEALS
DIVISION III
CR-13-1093
No.
Opinion Delivered September 3, 2014
DESMOND EUGENE ROWE APPEAL FROM THE CHICOT
APPELLANT COUNTY CIRCUIT COURT
[No. CR-2012-52-1]
V.
HONORABLE SAM POPE, JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED
LARRY D. VAUGHT, Judge
On September 16, 2013, Desmond Eugene Rowe’s probation was revoked for failure to
comply with the conditions of his probation, which included an express provision whereby
Rowe agreed to “[n]ot purchase, own, possess, or control any deadly weapons or firearms.”
After considering the evidence presented at the hearing the trial court found, as the State alleged,
that Rowe had violated the terms of his probation by committing a criminal offense that
involved the use of a firearm. He was sentenced to seventy-two months in prison and now
appeals from that sentence.
A trial court may revoke a defendant’s probation at any time prior to the expiration of
the period of probation if it finds by a preponderance of the evidence that the defendant has
inexcusably failed to comply with a condition of his probation. Ark. Code Ann. § 5-4-309(d)
(Repl. 2006). The State need only show that the appellant committed one violation in order to
sustain a revocation. Brock v. State, 70 Ark. App. 107, 14 S.W.3d 908 (2000). In
Cite as 2014 Ark. App. 446
probation-revocation proceedings, the State has the burden of proving that appellant violated
the terms of his probation, as alleged in the revocation petition, by a preponderance of the
evidence, and this court will not reverse the trial court’s decision to revoke probation unless it
is clearly against the preponderance of the evidence. Stinnett v. State, 63 Ark. App. 72, 973 S.W.2d
826 (1998). We defer to the superior position of the trial court to determine questions of
credibility and the weight to be given the evidence. Dishman v. State, 2011 Ark. App. 437, 384
S.W.3d 590. Craig v. State, 2010 Ark. App. 309. Furthermore, the rules of evidence do not strictly
apply in revocation proceedings. James v. State, 2012 Ark. App. 429. Evidence that is insufficient
to sustain a conviction may be sufficient to establish a criminal act for purposes of revocation.
Id.
On appeal, Rowe challenges the evidence supporting the findings of the trial court,
arguing that the testimony was insufficient to demonstrate that he had participated in a shooting
incident that occurred on March 30, 2013. Specifically, Rowe contends that the testimony of the
victim Jermaine Kincade was insufficient to establish that Rowe was a participant in a crime that
involved multiple individuals.
At the revocation hearing, Kincade testified that he was driving a vehicle with two
passengers on the night of March 30, 2013, when Rowe’s brother Marcus Shelton approached
the car, pulled out a gun, began firing, and wounded one passenger. According to Kincade, after
the initial assault by Shelton, other individuals—including Rowe—began firing guns at the
vehicle. Kincade stated that while he sped away from the scene, Shelton was in front of his
vehicle firing, while Rowe and the others were firing from behind. Kincade unequivocally stated
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Cite as 2014 Ark. App. 446
that he observed Rowe firing a gun at his vehicle, witnessing the event through the rearview
mirror. He also noted that he had known Rowe his entire life and recognized him easily.
The trial court found Kincade to be credible in his testimony. It is well-settled law that
the determination of the credibility of eyewitness testimony is a question for the fact-finder. Hall
v. State, 2010 Ark. App. 717. Therefore, based on the credible testimony of Kincade, the trial
court’s finding that Rowe violated a term and condition of his probation by discharging a firearm
is not clearly against the preponderance of the evidence.
Affirmed.
WALMSLEY and GLOVER, JJ., agree.
Joseph P. Mazzanti III, for appellant.
Dustin McDaniel, Att’y Gen., by: Eileen W. Harrison, Ass’t Att’y Gen., for appellee.
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